THAKUR DEYAL SINGH Vs. RAI PROMATHA NATH MITRA

JUDGEMENT

(1.) Second Appeal No. 702 of 1932 arises out of a suit by the lessors for recovery of possession on breach of a covenant not to transfer the demised property. In 1863 the ancestors of the plaintiffs, who were the proprietors of an 8 annas share in Mauzas Pandepura and Dihri, granted a mukarrari lease of 7 1/2 annas to Gouri Singh and Gobind. The interest of each of the lessees in the mukarrari was specified to be one-half. The lease contained a covenant by the lessees not to alienate the demised property without the consent of the lessors. Gouri Singh sold a 1-anna share to three persons in 1814 without the consent of the lessors. In 1899, however, the sons of the purchasers executed a Jamognama in respect of this 1-anna share in favour of the lessors, containing all the terms of the original grant of 1863. It is not disputed that one result of this was that the rent of the 1- anna share was separated from the rent payable for the remainder of the mukarrari property. In 1906 the purchasers sold the 1-anna share to defendants Nos. 1-7 without the consent of the lessors. Thereafter the latter sued defendants Nos. 1-7 for rent and, in execution of the decree obtained in that suit the 1-anna share which was purchased by defendant No. 8. On February 23, 1925, defendant No. 8 re-sold his interest to defendants Nos. 1-7 by a sale-deed which was registered on May 25, 1925. Two years later defendants Nos. 1-7 instituted a suit for partition of the 1-anna share. This suit was decreed. Pending an appeal from the decree the lessors served on defendants Nos. 1-7 a notice alleging that their purchase was in contravention of the terms of the lease and demanding possession. The partition decree was confirmed in appeal. In the meanwhile, on August 11. 1928, the lessors instituted the present suit for recovery of possession. Defendant No. 8 did not enter appearance. The suit was decreed in the trial Court and this decision was affirmed in appeal. Defendants Nos. 1-7 have preferred this second appeal.

(2.) The Courts below held that the covenant in restraint of alienation was a covenant running with the land, therefore, it was binding on defendant No. 8, the purchaser in execution of the rent decree, and on defendants Nos. 1-7 who had repurchased from him. In Saradakripa Lala V/s. Bepin Chandra Pal 37 CLJ 538 : 74 Ind. Cas. 555 : AIR 1923 Cal. 679, Mukerjee and Chotzner JJ., following Williams V/s. Earle (1868) 3 QB 739 : 37 LJQB 231 : 9 B & S 740 : 19 LT 238 : 16 WR 1041, McEacharn V/s. Colton (1902) AC 104 : 71 LJPC 20 : 85 LT 594 and West V/s. Dobb (1869) 4 QB 634 : 38 LJQB 289 held that an express covenant not to transfer the demised property without the consent of the landlord is a covenant running with the land and, therefore, that it was enforceable against a person who purchased the lessee's interest in execution of a decree for rent obtained by the lessor against the lessee. In the per-sent case, therefore) the covenant in restraint of alienation was binding on defendant No. 8, the auction-purchaser. A. covenant running with the land binds not only the lessee but also assignees from him although they are not expressly mentioned: Goldstein V/s. Sanders (1915) 1 Ch. 549 : 84 LJCh. 386 : 112 LT 932.

(3.) It was, however, contended by the appellant that, in as much as the transfer to defendants Nos. 1-7 was a transfer to persons whom the lessors had previously accepted as tenants, it was not a transfer which brought the forfeiture clause into operation. This was negatived in McEacharn V/s. Colton (1902) AC 104 : 71 LJPC 20 : 85 LT 594, where it was held that a covenant by a lessee, not to assign without the lessor's consent, applies to a re-assignment to the original lessee. This case was followed by Ross and Chatterji, JJ. in S. A. No. 1468 of 1928 which was decided on June 13, 1930. It was not contended that a covenant by a lessee not to assign without the landlord's consent implies that the landlord's consent will not be unreasonably withheld. The answer to this is that the landlord's consent was never asked for, so that there is no question of it being unreasonably withheld : see Barrow V/s. Isaes (1891) 1 QB 417 : 60 LJQB 179 : 39 WR 338 : 64 LT 686 : 55 JP 517. It was suggested, however, that in such a case the Court should relieve against forfeiture if in fact the transferee is a person to whom the landlord could not reasonably object. The power of a Court of equity to relieve against forfeiture is reproduced in Section 114, Transfer of Property Act, 1882, and is confined to forfeiture for non-payment of money. Krishna Shetti V/s. Pinto 42 M 654 : 50 Ind. Cas. 898 : AIR 1919 Mad. 12 : 36 MLJ 367 : 9 LW 431, following Bill V/s. Barclay (1811) 18 Ves. 56 : 34 BR 238 : 11 RR 147, at p. 64, (1811) 18 Ves.--[Ed.] where, with regard to the right of re-entry on breach of a covenant in restraint of alienation Lord Eldon said: "It is sufficient that the lessor insists upon his covenant; and no one has a right to put him in a different situation" : see also Vittappa Kudva V/s. Durgama, 55 Ind. Cas. 781 55 Ind. Cas. 781 : 38 MLJ 190 : AIR 1920 Mad. 312 : 11 LW 116 : (1920) MWN 183.